Judge Elaine W. Mandel, Case Number: 22STCV12892, Date: 2023-12-06 Tentative Ruling

Judge: Elaine W. Mandel, Case: 22STCV12892, Date: 2023-12-06 Tentative Ruling

Case Number: 22STCV12892 Hearing Date: December 6, 2023 Dept: P

Tentative Ruling

Jane Doe v. Roe 1, Case No. 22STCV12892

Hearing Date December 6, 2023

Defendant Roe 1’s Motion for Summary Judgment

Plaintiff Jane Doe alleges she was sexually abused as a minor in 1974. Her alleged abuser was Fred Hilst, a pastor employed by a Roe 1 religious institution. Doe alleges causes of action for negligent supervision, retention and training and negligent supervision of a minor. Roe moves for summary judgment, arguing Doe cannot present admissible evidence showing Roe knew or should have known Doe committed sexual abuse or had a propensity for sexual abuse.

Evidentiary Objections

Doe’s objections OVERRULED.

Motion for Summary Judgment

A court determining a summary judgment motion applies a three-step process: (1) identifying the issues framed by the complaint, (2) determining whether moving party made an adequate showing that negates the opponent’s claim, and (3) determining whether opposing party raised a triable issue of fact. Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1662.

Generally, sexual abuse falls outside the scope of employment and cannot be the basis for respondeat superior liability. E.g. Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 993. When, however, a plaintiff is “particularly vulnerable and dependent upon the defendant who, correspondingly, has some control over the plaintiff’s welfare[,]” (e.g. if the plaintiff is a child), an institutional defendant has a heightened affirmative duty to protect from sexual abuse by parties, such as employees. Doe v. United States Youth Soccer Ass’n., Inc. (2017) 8 Cal. App. 5th 1118, 1132.

This means institutions with charge of children must use reasonable measures to protect from foreseeable injury, including injuries caused by sexual abuse. Doe v. Lawndale Elementary School Dist. (2021) 72 Cal.App.5th 113, 165. Foreseeability of sexual abuse can be established by showing defendant knew an employee engaged in or had a propensity to engage in sexual misconduct with minors, but such a showing is not the only way to establish foreseeability. Id. pgs. 167-168. It is generally foreseeable that sexual abuse may take place within institutions providing services to children, so those entities have a duty to take “reasonable measures” to protect children in their care, even if they have no knowledge a specific employee is a potential abuser. Id. pg. 170.

Roe argues Doe presented no evidence that the church was aware Hilst had a propensity to commit abuse, previously committed sexual abuse or exhibited “red flags” that would put Roe on notice children needed to be protected from him. Roe cites Doe’s discovery responses and declaration of current pastor Peter Hilst (son of Fred Hilst), to support its claim Roe had no knowledge of any propensity by Fred Hilst to commit sexual misconduct.

Under Doe v. Lawndale, a plaintiff alleging negligent failure to protect a child from sexual abuse need not prove an institutional defendant had actual knowledge of a specific employee’s propensity for sexual abuse, merely that defendant failed to take reasonable measures to protect children in its care from a general risk of sexual abuse. Doe v. Lawndale, supra, 72 Cal.App.5th. at 170.

Doe alleges Roe failed to implement policies to protect children from the general risk of abuse, and thus failed to prevent the abuse inflicted on Doe. Complaint ¶¶44, 45. 63, 64. The motion does not address these allegations. It presents no evidence showing lack of a “special relationship” with Doe, which imposes a duty to protect, or that it enacted reasonable policies to protect Doe from sexual abuse.

The issues to be decided on summary judgment are framed by the pleadings. Roe does not address issues of liability raised – such as that Roe owed a duty of care by virtue of a “special relationship” and breach by failing to take reasonable measures to prevent sexual abuse. Because the motion is confined to the narrow issue of Hilst’s propensity to commit sexual abuse and does not address other issues raised, it fails to negate the causes of action it targets. Roe does not meet its initial summary judgment burden. DENIED.